No matter your industry, if you deal with information, it is vital to have an effective Records Management (RM) policy across your enterprise. Like all policies, having them is one thing and following them is a completely different challenge. It is equally if not more important to consistently implement an RM policy if one exists. As a former attorney involved in litigation both from a private practice and in-house perspective, I appreciate the ramifications of reacting to problems rather than anticipating and fixing them before they occur.

This is especially true of RM policies. Once litigation begins, the failure to have and consistently implement an effective RM policy can have severe and costly ramifications: (1) it can lead to increased costs to find documents sought in legal discovery; (2) prejudice your ability to defend the action because you aren’t following best practices; (3) subject you to a crippling spoliation of evidence motion (more on this below); and (4) expose you to risk because documents that could or should have been destroyed may still exist and therefore could end up in your adversary’s possession.

A spoliation of evidence motion is especially dangerous and potentially crippling. In non-legal terms, spoliation of evidence means that you selectively destroyed evidence that could have harmed your defense of an action. An adversary who discovers this may likely file a spoliation of evidence motion in which they ask the court to give the jury a negative inference instruction. If this occurs, a court will tell the jury to infer or presume that the party who destroyed the evidence (i.e., records or information, in this context) did so with the intent to hide what they contained. The jury is further instructed to accept the adversary’s version of what those records contained, if that version is reasonable.

If your organization does not have an effective RM policy that is easy to understand and is being consistently followed, you are not employing best practices and are unnecessarily exposing yourself to risks you could easily avoid. Take steps now to plug the holes in your processes before it’s too late. Have a health check of your RM policies and practices performed by an expert. Seek out an expert who is qualified and sensitive to the budgetary pressures you face.